Government Employees Insurance Co. v. Glassco Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GOVERNMENT EMPLOYEES

INSURANCE CO., et al.,

Plaintiffs,

v. Case No. 8:19-cv-1950-KKM-JSS

GLASSCO INC., et al.,

Defendants.

ORDER

A windshield crack can start small but grow larger over time, leading to “spider

cracks” across the entire windshield.' So too with litigation. What began as relatively simple

disputes in state court, where Glassco sought unpaid amounts from Geico for windshield-

repair claims, has grown into this federal lawsuit alleging racketeering, antitrust violations,

and deceptive trade practices. This order resolves five motions for summary judgment—

with mixed results for the parties.

For the reasons discussed below, the defendants’ motions for summary judgment

(Docs. 122, 123, 127, 128) will be GRANTED IN PART and DENIED IN PART.

| How to Fix Small Cracks & Chips in Your Windshield, AUTOZONE, https://www.autozone.com/diy/g

lass/how-to-fix-windshield-cracks (last visited Sept. 13, 2021).

Geico’s motion for summary judgment (Doc. 125) will be DENIED.

I. BACKGROUND?

Jason Wilemon, John Bailey, and Andrew Victor own, in equal thirds, Glassco Inc.,

a windshield repair shop. Glassco employs or contracts with individuals who perform

windshield repairs on insured vehicles. To obtain payment for its services, Glassco submits

claims to the individual customer’s insurance company. Under Florida law, an insurer is

required to pay for their insureds’ windshield replacement with no deductible. See

§ 627.7288, Fla. Stat. An insurer must decide within thirty days whether to pay the claim

for the windshield repair. See id. § 626.9541(1)(i)(3)(e). An insurer’s failure to pay or

present sufficient reason for denying a claim can result in the repair shop suing the insurer

and, if successful, obtaining attorneys’ fees. See id. § 624.155.

Geico® claims Glassco abused this process. (See Doc. 1.) The Court’s previous order

denying the motion to dismiss summarizes the alleged scheme. (Doc. 59 at 4-5.) To put it

briefly, Geico alleges that Glassco submitted fraudulent claims for reimbursement on

windshield repairs. (See Doc. 1 at 4 1.) Geico’s fraud allegations break into two categories.

The first set of alleged misrepresentations covers claims submitted by Glassco that

* This order’s “Background” section is based on undisputed facts cited and discussed in the parties’ briefings.

3 This case has three plaintiff: Government Employees Insurance Company, Geico Indemnity Company,

and Geico General Insurance Company. (See Doc. 1.) This order refers to the plaintiffs collectively as

“Geico.”

(1) inflate the hours expended by the independent contractor to repair the windshield,

(2) list unnecessary windshield repairs, (3) charge for unperformed windshield repairs, and

(4) forge insureds’ signatures on work orders and on the assignment of benefits. (See Doc.

1 at 4 90, 91, 94, 95; see also Doc. 59 at 14.) The second set of alleged misrepresentations

covers claims submitted by Glassco that were infected with pervasive violations of the

Florida Motor Vehicle Repair Act (Repair Act), Sections 559.901-559.9921, Florida

Statutes. (See Doc. 1.) These include allegations that Glassco never provided written

estimates to insureds before obtaining assignments of benefits or performing the

windshield repairs. (Doc. 1 at 4 67-68); see §§ 559.905(1), 559.920, Fla. Stat. Geico

alleges Glassco violated these provisions, among others. (See Doc. 1.)

Geico brings seven causes of action. (See Doc. 1.)* It seeks a declaratory judgment

that Glassco’s actions violate the Repair Act, meaning Geico has no duty to pay pending

claims (Count I). Geico alleges causes of action under the federal Racketeer Influenced and

Corrupt Organizations Act (RICO) (Count II), RICO conspiracy (Count I), the Florida

Deceptive and Unfair Trade Practices Act (FDUTPA) (Count IV), Florida’s RICO statute

(Count V), common-law fraud (Count VI), and unjust enrichment (Count VII). (See Doc.

1.) In addition to Glassco, Geico alleges its causes of action against Wilemon, Bailey, and

Victor, individually. (Id.)

‘ The Court's previous order dismissed Geico’s standalone cause of action for alleged violations under the

Repair Act. (See Doc. 59 at 22.)

Each party now moves for summary judgment. (Docs. 122, 123, 125, 127, 128.)

Il. LEGAL STANDARD

Summary judgment is appropriate if no genuine dispute of material fact exists and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is

material if it might affect the outcome of the suit under governing law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

A moving party is entitled to summary judgment when the nonmoving party “fail[s]

to make a sufficient showing on an essential element of her case with respect to which she

has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The

nonmoving party must “go beyond the pleadings and her own affidavits” and point to

evidence in the record that demonstrates the existence of a genuine issue for trial. Id. at

324 (quotation omitted). The Court reviews all the record evidence and draws all legitimate

inferences in the nonmoving party’s favor. Cleveland v. Home Shopping Network, Inc.,

369 F.3d 1189, 1192-93 (11th Cir. 2004).

The Court need not grant summary judgment simply because parties file cross-

motions. United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984). That said, cross-

motions for summary judgment “may be probative of the non-existence of a factual dispute

when... they demonstrate a basic agreement concerning what legal theories and material

facts are dispositive.” Id. at 1555-56 (quoting Bricklayers Int’l Union, Local 15 v. Stuart

Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)).°

Rule 56’s standard for summary judgment remains unaffected when the parties

submit cross-motions. Am. Bankers Ins. Grp. v. United States, 408 F.3d 1328, 1331 (11th

Cir. 2005). Each motion is considered on its own merits and reasonable inferences are

resolved “against the party whose motion is under consideration.” Torres v. Rock & River

Food, Inc., 244 F. Supp. 3d 1320, 1327-28 (S.D. Fla. 2016) (Scola, J.) (citing Am. Bankers

Ins. Grp., 408 F.3d at 1331).

Ill. ANALYSIS

As stated earlier, each party moves for summary judgment. (Docs. 122, 123, 125,

127, 128.) This order will analyze separately each motion, starting with Bailey’s.

A. Bailey’s Motion for Summary Judgment

Bailey moves for summary judgment under Florida’s statute prohibiting Strategic

Lawsuits Against Public Participation (anti-SLAPP), section 768.295, Florida Statutes.

(See Doc. 122.) He also moves for summary judgment against Geico’s federal RICO claim

(Count I), federal RICO conspiracy claim (Count II), Florida RICO claim (Count V),

FDUTPA claim (Count IV), common-law fraud claim (Count VI), and unjust-

enrichment claim (Count VII). (See Doc. 122.)

former Fifth Circuit's decisions issued before the close of business on September 30, 1981, are binding

precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).

1. Anti-SLAPP

Bailey argues that Florida’s anti-SLAPP statute prohibits Geico from bringing all

its claims against him. (Doc. 122 at 1-5.) According to Bailey, Geico initiated this lawsuit

in retaliation for Glassco’s state-court lawsuits to recover unpaid portions of claims for

windshield repairs that Glassco submitted to Geico. (See id. at 4.) Thus, this action is

“improperly motivated to discourage” him and Glassco from vindicating their rights in state

court. (Id. at 5.) As such, Bailey concludes that Geico’s actions violate Florida’s anti-

SLAPP statute and that this Court should grant summary judgment against all of Geico’s

claims. (Id.)

Geico responds that Bailey’s anti-SLAPP challenge fails because this lawsuit has

merit and is not based primarily on the defendants exercising their First Amendment rights

with respect to a public issue. (Doc. 133 at 4-6.) Geico cites numerous courts that have

ruled in favor of insurers seeking declarations that no obligation exists to pay outstanding

claims. (Id. at 6.) As a result, Geico concludes that the Court should deny Bailey’s anti-

SLAPP motion. (Id.)

Florida’s anti-SLAPP statute prohibits a person from suing another “without merit

and primarily because such person . . . has exercised the constitutional right of free speech

in connection with a public issue .. . or to petition for redress of grievances before the

various governmental entities of this state, as protected by the First Amendment to the

United States Constitution and [the Florida] Constitution.” § 768.295(3), Fla. Stat. The

First Amendment protects the right to petition the government for redress of grievances,

which the Supreme Court has recognized includes “the right of access to the courts.” See

Bill Johnson’s Rests. Inc. v. NLRB, 461 U.S. 731, 741 (1983) (citing Cal. Motor Transport

Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)); see also Borough of Duryea v.

Guarnieri, 564 U.S. 379, 387 (2011) (“[T]he Petition Clause protects the right of

individuals to appeal to courts and other forums established by the government for

resolution of legal disputes.”). So, the anti-SLAPP statute seems to cover lawsuits filed

against Geico in Florida state court.

But whether Florida’s anti-SLAPP statute applies in federal court presents a more

difficult question. See Parekh v. CBS Corp., 820 F. App’x 827, 836 (11th Cir. 2020)

(declining to decide because appellant failed to raise issue before district court). A federal

court sitting in diversity must apply state substantive law and federal procedural law. Hanna

v. Plumer, 380 U.S. 460, 465 (1965) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938)). Under those circumstances, we “apply Erie and its progeny to determine ‘whether

failure to apply the state law would lead to different outcomes in state and federal court

and result in inequitable administration of the laws or forum shopping.” Harris, 756 F.3d

at 1358 (quotation omitted). But even where a state law is substantive, “[a] federal court

exercising diversity jurisdiction will not apply a state law if a Federal Rule of Civil

Procedure ‘answers the question in the dispute.” Carbone v. Cable News Network, Inc.,

910 F.3d 1345, 1349 (11th Cir. 2018) (quoting Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393, 398 (2010)). A federal rule “answers the question” where

it is sufficiently broad to control the issue before the court and it conflicts with state law.

Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1358 (11th Cir. 2014).°

Caselaw based on anti-SLAPP statutes from other states provides some guidance.

To begin, the Eleventh Circuit held in Royalty Network that § 9-11-11.1(b) of Georgia’s

anti-SLAPP statute does not apply to diversity cases in federal court because it conflicts

with Federal Rule of Civil Procedure 11. 756 F.3d at 1362. Georgia’s statute requires a

party filing a lawsuit to verify that the claim is “well grounded in fact, is warranted under

existing law, and that the claim is not made for an improper purpose.” Id. at 1354. This

requirement goes beyond the requirements of Rule 11, which has no verification

requirement for pleadings. Id. at 1358-59. Because Georgia’s anti-SLAPP statute conflicts

with Rule 11’s requirements for filing pleadings, it has no application to diversity cases in

federal court. See id. at 1359-62.’

Next, Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1331 (D.C. Cir. 2015)

(Kavanaugh, J.), involves Washington, D.C.’s anti-SLAPP statute, which requires courts,

6 “A federal rule applies in the face of a conflicting state rule, however, only if the federal rule comports

with the Rules Enabling Act, 28 U.S.C. § 2072, and the Constitution.” Royalty Network, 756 F.3d at

"Royalty Network also concluded that Rule 11 is valid under the Rules Enabling Act. 756 F.3d at 1360.

upon motion, to dismiss defamation suits targeting public or political advocacy if the

plaintiff cannot prove it is likely to succeed on the merits. Id. Abbas holds that D.C.’s anti-

SLAPP Act has no application in diversity cases because Federal Rules of Civil Procedure

12 and 56 already detail how a court may dismiss a claim pretrial, with neither requiring a

likelihood of success showing. Id. at 1333-34. D.C.’s anti-SLAPP Act therefore imposes

a higher burden on a plaintiff to proceed to trial compared to the Federal Rules of Civil

Procedure. Id. at 1334. Thus, a federal court exercising diversity jurisdiction may not apply

D.C.’s anti-SLAPP Act’s special motion-to-dismiss provision. Id.®

Other cases analyzing anti-SLAPP statutes that contain provisions similar to D.C.’s

“likelihood of success” requirement arrive at the same conclusion as Abbas, namely that

imposing a higher burden on the plaintiff conflicts with the Federal Rules. See Carbone,

910 F.3d at 1357 (William Pryor, J.) (holding that Georgia’s anti-SLAPP statute’s motion-

to-strike provision, which contained a “likelihood of success” test, conflicts with Federal

Rules of Civil Procedure 8, 12, and 56); La Liberte v. Reid, 966 F.3d 79, 83 (2d Cir. 2020)

(Jacobs, J.) (“[W]e hold that California’s anti-SLAPP statute is inapplicable in federal

court because it increases a plaintiffs burden to overcome pretrial dismissal, and thus

conflicts with Federal Rules of Civil Procedure 12 and 56.”); see also Makaeff, 715 F.3d at

274-75 (Kozinski, J., concurring) (discussing how California’s anti-SLAPP statute

® Like Rule 11, Rules 12 and 56 are valid under the Rules Enabling Act. Abbas, 783 F.3d at 1336-37.

conflicts with Federal Rules of Civil Procedure 11, 12, and 56, among others).

In a slightly different approach, Los Lobos Renewable Power, LLC v.

Americulture, Inc., 885 F.3d 659, 668-73 (10th Cir. 2018) (Baldock, J.), focused on

whether the New Mexico’s anti-SLAPP statute was procedural or substantive—the central

inquiry under Erie. Unlike in Abbas, New Mexico’s statute has no “likelihood of success”

or burden-increasing provision. See id. Instead, New Mexico’s anti-SLAPP statute is

“nothing more than a procedural mechanism designed to expedite the disposal of frivolous

lawsuits aimed at threatening free speech rights.” See id. at 668-69. To arrive at this

conclusion, the Tenth Circuit considered how the statute mandated expedited procedures

to ruling on an anti-SLAPP motion; the statute set forth no substantive legal rule for how

courts decide anti-SLAPP motions; the New Mexico Supreme Court described the statute

as procedural; and the statute provided for an expedited appeal of trial court orders denying

anti-SLAPP motions. Id. at 669-71. Because New Mexico’s anti-SLAPP statute is purely

procedural, it has no application in federal court. Id. at 673; see also Makaeff, 715 F.3d at

273 (Kozinski, J., concurring) (“The [California] anti-SLAPP statute creates no

substantive rights; it merely provides a procedural mechanism for vindicating existing

rights.”).

That brings us to Florida. A plain reading of Florida’s anti-SLAPP statute reveals

that it contains no “likelihood of success” or burden-shifting provision like that of Georgia’s

10

or D.C.’s statutes. See § 768.295, Fla. Stat. Nor does it contain a verification provision like

Georgia’s statute. See id. Instead, a plain reading of the statute suggests that Florida’s

statute, like New Mexico’s statute, is strictly a procedural mechanism for litigants to have

anti-SLAPP motions decided more expeditiously. For instance, after prohibiting lawsuits

in retaliation for exercising First Amendment rights, Florida’s statute provides that the

person possibly subject to a SLAPP lawsuit “has a right to an expeditious resolution of a

claim that the suit is in violation of this section.” Id. § 768.295(4). The person possibly

subject to a SLAPP lawsuit may file a motion to dismiss or motion for summary judgment.

Id. A motion for summary judgment may include affidavits, and the party that filed the

lawsuit must file a response and include its own affidavits. Id. The court must then hold a

hearing on the anti-SLAPP motion “as soon as practicable.” Id. If the party filing an anti-

SLAPP motion prevails, the court may award damages, attorney’s fees, and costs. Id.

If the Court were to decide based on a plain reading of Florida’s anti-SLAPP

statute, then it would likely arrive at the same conclusion as Los Lobos. 885 F.3d at 668—

69. That is, Florida’s statute is strictly procedural and plainly creates no substantive right.

Rather, it merely provides a mechanism for a quick resolution to a motion aimed at

protecting First Amendment rights.

But at least one Florida court reads it differently. In Gundel v. AV Homes, Inc.,

Florida’s Second District Court of Appeal concluded that Florida’s anti-SLAPP statute

11

“creates a right not to be subject to meritless suits filed ‘primarily because [the defendant]

has exercised the constitutional right of free speech in connection with a public issue, or

right to peacefully assemble, to instruct representatives of government, or to petition for

redress of grievances before the various governmental entities of the states.” 264 So. 3d

304, 310-11 (Fla. 2d DCA 2019) (alteration in original) (quotation omitted) (referring to

the right created by the anti-SLAPP statute as a “substantive right”). Although it

recognized that the statute puts forth “procedural mechanisms,” that court also read into

the statute a burden-shifting test. Id. at 312-14. Under this test, the SLAPP defendant

bears the initial burden of establishing a prima facie case that the anti-SLAPP statute

applies. Id. at 314. Then the party that filed the lawsuit must show that its claims are not

without merit and not primarily based on retaliating against the exercise of First

Amendment rights in connection with a public issue. Id. The court found that this

unwritten burden-shifting approach “serves the purpose of the statute.” Id. But see

Ingraham v. Wright, 430 U.S. 651, 670 n.39 (1977) (“There is no support whatever for

this [purposive analysis] in the decisions of this Court.”).’

” At least one court in this Circuit concluded that Florida’s anti-SLAPP statute applies in federal court. See

Bongino v. Daily Beast Co., LLC, 477 F. Supp. 3d 1310, 1322-23 (S.D. Fla. 2020) (Martinez, J.). But

that court never discussed whether the statute is procedural or substantive. Rather, the court concluded that

the anti-SLAPP statute applies in federal court because its fee-shifting provision conflicts with no Federal

Rule of Civil Procedure. Id. at 1324. But see Makaeff, 715 F.3d at 273 (Kozinski, J., concurring) (“[T]he

question of a conflict only arises if the state rule is substantive; state procedural rules have no application in

federal court, no matter how little they interfere with the Federal Rules.”).

12

The Court is left with a state statute, the text of which is procedural and creates no

substantive right but which has been interpreted by a state appellate court as creating a

substantive right that includes a burden-shifting approach to deciding a motion. Whatever

misgivings the Court might have, its obligation is clear: “State law is what the state

appellate courts say it is, and we are bound to apply a decision of a state appellate court

about state law even if we think that decision is wrong.” Winn-Dixie Stores, Inc. v.

Dolgencorp, LLC, 881 F.3d 835, 848 (11th Cir. 2018) (Ed Carnes, C.J.). So here we are:

the Court must read Florida’s anti-SLAPP statute as creating a substantive right and apply

its burden-shifting procedure per Gundel if no conflicts exist with the Federal Rules of

Civil Procedure. See Makaeff, 715 F.3d at 273 (Kozinski, J., concurring). None do. Under

Gundefs interpretation of the statute, the party filing a SLAPP motion bears the initial

burden of establishing a prima facie case that the lawsuit at issue violates the statute. 264

So. 3d at 314. This procedure is no different from Federal Rule of Civil Procedure 7(b)’s

requirement that a party filing a motion “state with particularity the grounds for seeking

the order” and “state the relief sought.”

After a Florida SLAPP motion is filed, the party that filed the lawsuit must

demonstrate that (1) its claims are not based primarily on the other party exercising First

Amendment rights in connection with a public issue and (2) its claims have merit. See

Gundel, 264 So. 3d at 314. Again, the Court fails to see how this differs from a party that

13

responds to a motion filed under Federal Rule of Civil Procedure 7(b). In fact, it’s par for

the course. Under Rule 7(b), the moving party files a motion and argues that it is entitled

to specific relief. The opposing party must then file a response and argue why the Court

should not grant the moving party’s requested relief. See also Local Rule 3.01(b) (stating

that a party responding to a motion may file a legal memorandum). This procedure tracks

with Gundef?s interpretation of Florida’s anti-SLAPP statute. First, the defendant files a

SLAPP motion and states its requested relief by establishing a prima facie case that the

lawsuit violates the statute. 264 So. 3d at 314. Then, the plaintiff responds to the motion

and demonstrates how the statute is not violated by proving that the lawsuit (1) is not

primarily based on the plaintiff exercising First Amendment rights and (2) has merit. Id.

Gundefs interpretation of Florida’s anti-SLAPP statute differs significantly from

other States’ anti-SLAPP statutes, which change the verification requirement for all

pleadings and adjusts the burden of persuasion for prevailing on a SLAPP motion. See

Royalty Network, 756 F.3d at 1362 (verification requirement); Carbone, 910 F.3d at 1351

(burden of persuasion); see also Abbas, 783 F.3d at 1334 (burden of persuasion). No such

change or adjustment to a Federal Rule of Civil Procedure occurs under Florida’s anti-

SLAPP statute. Nevertheless, the Court will proceed to analyze Bailey’s SLAPP motion

under Gundef?s interpretation of the statute.'°

10 The parties provide no briefing on many issues discussed here about Florida’s anti-SLAPP statute. Most

relevant at this point, no party addresses whether Federal Rule of Civil Procedure 7(b) is valid under the

14

In his motion, Bailey argues that Geico began this lawsuit “to deter Glassco from

bringing state court breach of contract claims when Geico only pays 50% of Glassco’s

invoices.” (Doc. 122 at 3.) Bailey points to an exhibit that Geico attached to its complaint

which lists 1773 claims at the heart of Geico’s lawsuit against the defendants. (Doc. 1-1.)

According to Bailey, these claims form part of the litigation in state court against Geico,

where it has settled 53 claims of the 1773 claims attached to the complaint. (Doc. 124-1

at 4, 12-13.) Bailey also provides a copy of final judgment entered in various plaintiffs’

favor against Geico in 11 actions based on Geico’s 1773 claims in state court. (Doc. 124-1

at 17-26.)

Bailey fails to establish a prima facie case that Geico violated Florida’s anti-SLAPP

statute when it filed this lawsuit against him. Geico’s spreadsheet with the 1773 claims at

issue in this case contains no information about lawsuits filed for each respective claim.

(Doc. 1-1.) Further, the final judgments Bailey attaches to his motion deal with lawsuits

filed by other individuals—Bailey’s name is not among them. (Doc. 124-1 at 17-26.) So

the Court has before it no evidence showing that Bailey himself filed a lawsuit against

Geico as to make it plausible that this action violates Florida’s anti-SLAPP Act. See

Celotex Corp., 477 U.S. at 323 (stating that the party moving for summary judgment must

Rules Enabling Act. The Court assumes, without deciding, that Rule 7(b) is valid under the Rules Enabling

Act. See Abbas, 783 F.3d at 1336 (“So far, the Supreme Court has rejected every challenge to the Federal

Rules that it has considered under the Rules Enabling Act.”).

15

identify evidence that “it believes demonstrate the absence of a genuine issue of material

fact”); see also § 768.295(4), Fla. Stat. (stating that a motion for summary judgment under

the anti-SLAPP statute may include supplemental affidavits). As a result, Bailey fails to

establish a prima facie case to succeed on his SLAPP motion, and the Court need not

proceed further under Gundefs burden-shifting approach. Bailey's motion for summary

judgment under Florida’s anti-SLAPP act is denied.

2. Civil RICO (Count IT)

Bailey argues that the Court should grant summary judgment against Geico on its

civil RICO claims against him. (Doc. 122 at 11-30.) Dividing Geico’s RICO claims into

two categories as discussed above, Bailey argues that summary judgment in his favor is

appropriate for Geico’s claims based on alleged violations of the Repair Act (the first

category) and Geico’s claims of deceptive conduct apart from the Repair Act (the second

category). (Id. at 13-14.) The Court agrees.

a. Repair Act-Based Claims

Starting with the Repair Act-based claims, Bailey argues that Geico is not entitled

to recover payments for repair work because Geico is not a customer under the Act. (Id. at

14-15.) Bailey also argues that Glassco did not violate the Repair Act when not providing

written repair estimates because the Act requires an estimate when the costs will exceed

$100 to the insured; here, no insured ever paid anything for repairs. (Id. at 15-16.) Further,

16

Bailey argues that failing to provide odometer readings is not a wire-fraud violation under

RICO. (Id. at 16.) Nor is using undisclosed independent contractors as sales

representatives and glass installers actionable under RICO. (Id. at 16-20.) And Bailey

argues that Geico’s claim that Glassco falsely represents to insureds that their benefits will

be assigned to Glassco—despite Glassco not performing the windshield repairs—is not

actionable under RICO. (Id. at 20-22.)

Geico responds that repair shops that violate the Repair Act have no right to

payment for claims, as demonstrated by Florida caselaw. (Doc. 133 at 7-12.)'! Geico argues

that Glassco violated the Repair Act by failing to provide written estimates to insureds if

the windshield repair exceeded $100; failing to provide written invoices to insureds;

subcontracting glass repairs without insureds’ or Geico’s knowledge or consent; and not

obtaining valid assignments from insureds. (Id. at 12-20.)

Geico also argues that Bailey and Glassco committed wire fraud because they

deceived Geico by leading it to believe it had to pay over $720,000 in claims. (Id. at 20-

22.) Further, Geico argues that Bailey participated in Glassco’s deceptive scheme by

running its operation and management. (Id. at 22.) According to Geico, the evidence also

establishes closed-ended and open-ended continuity for a pattern of racketeering. (Id. at

Geico’s excessive use of footnotes to address substantive legal issues in dispute proved unhelpful. (See,

e.g., Doc.133 at 21-29.) Any briefing going forward that exploits its footnotes will be summarily struck.

See Murphy v. Inman, No. 17-13293, 2018 WL 8809349, at *13-14 (E.D. Mich. Feb. 21, 2018)

(admonishing attorneys that abused footnotes “clearly aimed at circumventing the page limits”).

17

24-26.) As a result, Geico argues that the Court should deny Bailey’s motion for summary

judgment on its civil RICO claims against him. (Id. at 27.)

Bailey replies that the record shows that he owned a legitimate business—not a

racketeering enterprise. (Doc. 139 at 13.) He reiterates that the Repair Act contains no

restitution remedy or penalty that allows an insurer to void a consumer transaction. (Id.)

According to Bailey, once the Repair Act is no longer an available predicate for Geico’s

wire-fraud allegation, then its civil RICO claim dissipates because the evidence shows

Bailey committed no other deceptive act. (Id.)

In the previous order on the defendants’ motions to dismiss, the Court addressed

whether violations under the Repair Act constitute a “scheme to defraud” to prevail on a

RICO claim predicated on wire fraud. (Doc. 59 at 15-18); see also Crawford’s Auto Ctr.

Inc. v. State Farm Mut. Auto. Ins. Co., 945 F.3d 1150, 1158 (11th Cir. 2019) (“A person

commits wire fraud when they (1) intentionally participate in a scheme to defraud another

of money or property and (2) use the wires in furtherance of that scheme.”). This order will

not rehash that one. But for summary-judgment purposes, the salient points from the

previous order are twofold: (1) the Repair Act has no provision voiding reimbursement

claims from noncompliant repair shops; and (2) “the Repair Act creates a private right of

action for the customer only.” (Doc. 59 at 16.) Given that, the previous order noted

apparent incongruity in allowing Geico to use the Repair Act to establish wire fraud: “To

18

allow Geico to recover treble damages [under civil RICO] predicated on the violation of a

statute under which Geico cannot sue appears passing strange.” (Id. at 17.)

The Court’s previous order leaves unanswered a question dispositive now at the

summary-judgment stage: “[I]s a claim for windshield repair fraudulent if a repair shop in

fact repaired the windshield but in a manner that violates the Repair Act?” Id.) Having

considered arguments and caselaw thoroughly briefed by the parties, the Court arrives at

an answer: No.

Noncompliant reimbursement claims for completed windshield repairs cannot form

the predicate for wire fraud. To begin, Geico is not a “customer” under the Repair Act.

The Act defines “customer” as “the person who signs the written repair estimate or any

other person whom the person who signs the written repair estimate designates on the

written repair estimate as a person who may authorize repair work.” § 559.903, Fla. Stat.

The record on this issue is undisputed: Geico never signed written repair estimates that

Glassco (its employees, subcontractors, or independent contractors) gave to insureds. Nor

does any evidence show that an insured designated Geico on a written repair estimate as

the person who may authorize repair work. And Geico does not provide authority that the

law of subrogation permits it to assert its insureds’ (the customer under the Repair Act)

private right of action. Thus, Geico clearly falls outside the definition of “customer” under

the Repair Act. See Allstate Ins. Co. v. Auto Glass Am., LLC, 418 F. Supp. 3d 1009,

19

1025 (M.D. Fla. 2019) (Mendoza, J.) (concluding that an insurance company claiming

fraudulent windshield repair practices was not a customer under the text of Repair Act).

Geico’s civil RICO claim also fails because the Repair Act contains no provision

rendering unpayable claims for repair work actually performed by noncompliant repair

shops, meaning these claims are not considered unlawful under Florida law. The absence

of a provision of this kind stands in contrast with many other Florida statutes that include

such language. See State Farm Mut. Auto. Ins. Co. v. Performance Orthopaedics &

Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1330 (S.D. Fla. 2017) (Moore, J.) (collecting

examples of Florida statutes that void claims for reimbursement submitted by a non-

compliant entity). The Court previously discussed the Florida Health Care Clinic Act as

an example. (Doc. 59 at 16); § 400.9935, Fla. Stat.; see also State Farm Fire & Cas. Co. v.

Silver Star Health & Rehab, 739 F.3d 579, 583 (11th Cir. 2013) (discussing how charges

or reimbursement claims submitted by noncompliant clinics are noncompensable and

unenforceable under the Florida Health Care Clinic Act); Allstate Ins. Co. v. Vizcay, 826

F.3d 1326, 1331 (11th Cir. 2016) (Ed Carnes, C.J.) (same). The lack of language in the

Repair Act voiding claims by noncompliant entities for work performed is strong evidence

that the Florida legislature did not consider such claims fraudulent or unlawful. See

Performance Orthopaedics, 278 F. Supp. 3d at 1330 (“The fact that the Florida legislature

‘chose to impose’ such a remedy in certain circumstances but not others ‘indicates a

20

deliberate congressional choice with which the courts should not interfere.” (quoting Cent.

Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994))).

Geico cites inapposite caselaw to support its argument that technical violations can

constitute fraudulent activity despite Glassco actually performing the repairs,’ relying

heavily on 1616 Sunrise Motors, Inc. v. A-Leet Leasing of Fla., 547 So. 2d 267 (Fla. 4th

DCA 1989). There, an automobile repair shop filed a claim for repair and storage charges

against a bond filed by a car rental agency who secured the vehicle when its lessee failed to

pay the repair bill. Id. The court recognized that the car rental agency was not a “customer”

under the Repair Act, rather, the lessee was the customer, and it affirmed the lower court’s

ruling that the auto shop did not receive the written authorization from the lessee required

under the Repair Act to perform the repairs on the car. Id.'°

Any persuasive value Sunrise Motors might have cuts against Geico. Just as that

court held that the individual lessee was the customer, the Court here concludes that

insureds who signed repair estimates are customers under the Repair Act. Neither here nor

in Sunrise Motors does a person who does not sign a written estimate constitute a customer

under the Repair Act. Geico’s other cited cases are similarly unavailing. See Results Real

” The Court previously explained why three cases Geico cites are distinguishable. See (Doc. 59 at 17 n.5)

(discussing Osteen v. Morris, 481 So. 2d 1287 (Fla. 5th DCA 1986), Gonzalez v. Tremont Body &

Towing, Inc., 483 So. 2d 503 (Fla. 3d DCA 1986), and Safari Tours, Inc. v. Pasco, 255 So. 3d 415 (Fla.

3d DCA 2018)). The Court declines Geico’s invitation to address those cases again.

The statutory definition of “customer” changed since the Sunrise Motors decision, but that affects

nothing material in this Court’s analysis.

21

Estate v. Lazy Days RV Ctr., 505 So. 2d 587 (Fla. 2d DCA 1987) (holding that

corporation constituted a “consumer” under Florida’s Lemon Law); Raymar Constr. Co.

Inc. v. Lopez-Soto, 547 So. 2d 282 (Fla. 2d DCA 1989) (holding that the Repair Act

applied to a consumer transaction where an individual person requested repairs on a car

used “primarily for personal purposes and in connection with a business owning fewer than

five vehicles”); Perez-Priego v. Bayside Carburetor and Ignition Corp., 633 So. 2d 1190

(Fla. 5th DCA 1994) (holding that, under the Repair Act, a consumer not given a written

estimate may recover the repair bill and retain the benefit of the repairs).

Ultimately, the Court arrives at a conclusion now at which its previous order hinted:

Claims under the Repair Act for repairs performed by noncompliant repair shops are not

fraudulent or unlawful vis-a-vis the insurance company. As a result, these acts cannot form

the basis for a wire fraud scheme against Geico, the predicate acts Geico alleges in its civil

RICO claims against Bailey. His motion for summary judgment on that claim based on

violations under the Repair Act (Count IT) will be granted.

b. Non-Repair Act-Based Claims

Turning to Geico’s fraud allegations not based on violations under the Repair Act,

Bailey puts forth numerous arguments. (Doc. 122 at 22-30.) He contests that there is

evidence establishing that he acted with an intent to deceive (see id. at 22) or that an agency

relationship exists between him and the Glassco sales representatives who allegedly misled

22

insureds (see id. at 23). Instead, Bailey argues that Geico’s only evidence against him is that

he is a one-third owner of Glassco. (Id. at 23-24.)

Next, Bailey argues that evidence fails to establish that Glassco, as the alleged

enterprise, has a structure distinct from the alleged pattern of racketeering. (Id. at 24-25.)

According to Bailey, Geico’s allegation that Glassco would not exist but for the predicate

acts at issue here is fatal to its RICO claim. (Id. at 25.)

Bailey’s next argument is that no evidence establishes that Glassco conducted a

pattern of racketeering. (Id. at 26-30.) Although Geico supposedly has evidence showing

that Glassco billed for unnecessary work or for more time than was expended on windshield

repairs, Baily argues that this fails to establish a pattern of deception because Glassco based

its invoices on national standards. (Id. at 26-27.) Further, Bailey argues that no evidence

shows Glassco billed for work not actually performed. (Id. at 27.)

Finally, Bailey argues that no evidence establishes open-ended or closed-ended

continuity necessary for proving a pattern of racketeering. (Id. at 28-30.) He asserts that

no closed-ended continuity exists because the alleged pattern of racketeering consisted of

only one scheme with one victim. (Id. at 28-29.) And Bailey argues that no open-ended

continuity exists because Geico now has a policy in place requiring vehicle inspections

before authorizing repairs. (Id. at 30.) This new policy, according to Bailey, means that no

future threat exists that windshield repair companies will perform unnecessary work going

23

forward. (Id.)

Geico rebuts'* these points by arguing that evidence shows Bailey participated in

Glassco’s operation and management. (Doc. 133 at 22.) Also, Geico claims Bailey’s

argument about a lack of distinctiveness between Glassco and the alleged pattern or

racketeering is incorrect because Glassco had a legal existence separate from the pattern of

racketeering. (Id. at 23.) Geico also argues that Bailey’s argument about a lack of closed-

ended or open-ended continuity fails because the Defendants submitted hundreds of

fraudulent claims in a three-year period, which is long enough to establish closed-ended

continuity. (Doc. 133 at 24.) Alternatively, Geico argues evidence establishes open-ended

continuity because the defendants continue to bill for claims based on the fraudulent

practices at issue here. (Id. at 25-26.)

Bailey is entitled to summary judgment for several reasons. First, Geico fails to make

even a colorable attempt at rebutting Bailey’s first argument: that Geico does not point to

any evidence that Bailey acted with intent to deceive or was aware of any misrepresentations

Unlike the Court’s previous order and Bailey’s motion for summary judgment, Geico never delineates its

arguments about its RICO claims between those based on Repair-Act violations and those based on

fraudulent conduct irrespective of Repair-Act violations. (See Doc. 133.) Geico’s failure to do so causes

significant ambiguity and, whether intentionally or inadvertently, it waives numerous arguments that might

have fared better had Geico actually addressed the predicate acts of wire fraud premised upon the non-

Repair Act violations. But the Court will not—and should not—resurrect arguments that a party waives.

See, ¢,.g., In re Egidi, 571 F.3d 1156, 1163 (11th Cir. 2009) (“Arguments not properly presented in a

party’s initial brief or raised for the first time in the reply brief are deemed waived.”); Pin-Pon Corp. v.

Landmark Am. Ins. Co., 500 F. Supp. 3d 1336, 1346-47 (S.D. Fla. 2020) (Middlebrooks, J.) (concluding

arguments were waived when party did not address them in its briefing).

24

that Glassco’s representatives allegedly made. (Doc. 122 at 23-24.) Geico instead points to

broad statements about Bailey’s responsibility at Glassco. (Doc. 133 at 22.) But actual

knowledge of predicate acts, not merely reckless disregard, is required to support RICO

claims. See Liquidation Com’n of Banco Intercontinental, S.A. v. Renta, 530 F.3d 1339,

1354 (11th Cir. 2008) (“The predicate acts alleged here—mail and wire fraud,

transportation of converted funds, and money laundering—each require proof of

scienter.”); In re Cascade Intern. Sec. Litig., 840 F. Supp. 1558, 1566 (S.D. Fla. 1993)

(“Reckless disregard is not a sufficient level of intent to allege the underlying crime [and

support RICO liability.]”). For this reason alone, Bailey is entitled to summary judgment

on Count II given the lack of predicate acts attributable to him.

Geico also fails to put forth sufficient evidence upon which a reasonable jury could

conclude in its favor on continuity. The RICO allegations concern only a single scheme,

which is insufficient for establishing a pattern of racketeering. “Essential to any successful

RICO claim are the basic requirements of establishing ... a pattern of racketeering

activity.” Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1264 (11th Cir. 2004)

(quotation marks omitted). “To successfully [prove] a pattern of racketeering activity, [a]

plaintiff[] must [show] that: (1) the defendants committed two or more predicate acts

within a ten-year time span; (2) the predicate acts were related to one another; and (3) the

predicate acts demonstrated criminal conduct of a continuing nature.” Id. at 1264. “[T]o

25

prove a ‘pattern of racketeering activity it is not sufficient to simply establish two isolated

predicate acts.” Id. “RICO targets ongoing criminal activity, rather than sporadic, isolated

criminal acts[.]” Id. The last element, continuity, may be proven through closed-ended

continuity, a series of related predicates extending over a substantial period of time, or

open-ended continuity, a threat of continued repetition. Id. at 1265.

The caselaw in the Eleventh Circuit on this point is clear. When RICO allegations

concern only “a single scheme with a discrete goal,” no closed-ended continuity exists even

if “the scheme took place over longer periods of time.” Jackson, 372 F.3d at 1267; see also

Catano v. Capuano, No. 18-20223-CIV-TORRES, 2019 WL 3035752, at *4 (S.D. Fla.

July 11, 2019) (Torres, Mag. J.) (“[C]losed-continuity cannot exist in this case because the

alleged racketeering was related to a single scheme with a discrete goal ‘to embezzle, divide,

and launder more than $2 million in funds that properly belong to the Estate of Mauricio

Capuano[.]”).

Reviewing the evidence while drawing all permissible inferences in Geico’s favor,

no dispute of material facts exists on whether the Defendants conducted multiple schemes.

Rather the evidence clearly establishes that Geico’s RICO allegations involve a single

scheme that the Defendants orchestrated to collect on fraudulent claims for windshield

repairs from Geico. This single scheme with a “narrow scope’—“involv[ing] only one

scheme with a singular objective and a closed group of targeted victims”—is insufficient to

26

establish closed-ended continuity. See Jackson, 372 F.3d at 1267 (citing Efron v. Embassy

Suites (P.R.), Inc., 223 F.3d 12, 18 (1st Cir. 2000)). Even assuming (given that there is

disputed evidence on the timeline) that the Defendants carried out the scheme for at least

three years, that is not enough to save Geico’s allegations of closed-ended continuity when

the focus remained on a single scheme against a single victim, Geico. See id.; see also

Daedalus Cap. LLC v. Vinecombe, 625 F. App’x 973, 976 (11th Cir. 2015) (“[Appellants]

cannot show closed-ended continuity because there is only one victim . . . and ‘only a single

scheme with a discrete goal’ connecting the predicate acts.” (quotation omitted)). Geico

does not argue that the enterprise expanded beyond a single scheme or was targeted at more

victims, thus it fails to proffer sufficient evidence of closed-ended continuity.

Nor can Geico establish open-ended continuity “because there is no threat of

continuing criminal activity.” Daedalus, 625 F. App’x at 976 (emphasis added); see HJ.

Inc. v. Nw. Bell Tele. Co., 429 U.S. 229, 241 (1989) (defining open-ended-continuity as

“past conduct that by its nature projects into the future with a threat of repetition”). The

record is also clear on this point: Geico now has a policy in place that neutralizes any future

threat of the Defendants’ alleged racketeering. Namely, Geico now requires inspections of

all vehicles before authorizing repair work. (Doc. 124-1 at 5-6, 15; Doc. 124-4 at 5-8.)

This policy prevents future fraudulent claims because Geico would not approve unnecessary

repair work. (See id.) Because Geico has not provided evidence showing that a future threat

27

of criminal activity remains after it adopted the pre-authorization-inspection policy, no

future threat of continuing activity exists to establish opened-ended continuity. See

Catano, 2019 WL 3035752, at *5 (granting summary judgment against plaintiff who failed

to provide evidence showing future threat of defendant’s alleged racketeering).

Ultimately, Geico’s RICO claim against Bailey for fraudulent misrepresentations

fails because Geico cannot establish Bailey's knowledge of the predicate acts and cannot

establish closed-ended or open-ended continuity. See Jackson, 372 F.3d at 1264 (stating

that to successfully allege a pattern of racketeering, the plaintiff must establish, among

other things, that “the predicate acts demonstrated criminal conduct of a continuing

nature”). As a result, Bailey's motion for summary judgment against Geico’s RICO claims

not based on violations under the Repair Act (Count II) will be granted.

3. Civil RICO Conspiracy (Count IIT)

Bailey argues that the Court should grant summary judgment in his favor on Geico’s

RICO conspiracy claim because its underlying RICO claim fails. (Doc. 122 at 30-31.) To

be sure, “[t]o be guilty of conspiracy, . . . parties must have agreed to commit an act that is

itself illegal—parties cannot be found guilty of conspiring to commit an act that is not itself

against the law.” Jackson, 372 F.3d at 1269 (quoting United States v. Vaghela, 169 F.3d

729, 732 (11th Cir. 1999)). But because no evidence establishes the necessary predicate

acts and open-ended or closed-ended continuity, Bailey’s argument on this point is correct.

28

See Spain v. Brown & Williamson Tobacco Corp., 363 F.3d 1183, 1199 (11th Cir. 2004)

(“If the underlying cause of action is not viable, the conspiracy claim must also fail.”

(citation omitted)). The parties cannot be liable for conspiring to commit a RICO violation

where the underlying actions, as is true here, do not constitute a racketeering scheme.

Jackson, 372 F.3d at 1269 (“We have already found that the complaint failed to state a

substantive RICO claim, and the RICO conspiracy adds nothing.”). Bailey's motion for

summary judgment on Geico’s RICO conspiracy claim (Count III) will be granted.

4. Florida RICO (Count V)

Like its RICO conspiracy claim, Geico’s Florida RICO claim against Bailey falls

with its federal RICO claim. See Jackson, 372 F.3d at 1263-64; Ferrell v. Durbin, 311 F.

App’x 253, 256 n.5 (11th Cir. 2009) (“[T]he analysis of the Federal RICO claims is equally

applicable to the Florida RICO claims.”); Horace-Manasse v. Wells Fargo Bank, N.A.,

521 F. App’x 782, 784 (11th Cir. 2013) (“[T]he Florida Supreme Court has said . . . that

‘continuity is a required element under the Florida RICO Act.”). As a result, Bailey’s

motion for summary judgment on Geico’s Florida RICO claim (Count V) will be granted.

5. FDUTPA (Count IV)

Bailey argues that Geico cannot prevail on its FDUTPA claim against him because

Geico cannot establish corporate liability under FDUTPA, which is required for a finding

of individual liability under FDUTPA. (Doc. 122 at 32.); see KC Leisure, Inc. v. Haber,

29

972, So. 2d 1069, 1074 (Fla. 5th DCA 2008) (stating the rule that to prove individual

liability under FDUTPA, a plaintiff must show that the individual personally participated

or had control over a corporation’s deceptive practices). For the reasons discussed in Section

III.B.3 below, a genuine dispute of material fact exists allowing Geico to proceed under a

traditional-violation theory under FDUTPA. Thus, to the extent Bailey seeks summary

judgment based on Geico’s failure to present evidence of corporate liability, his motion is

denied.

Bailey also argues that the Court should grant summary judgment in his favor

because Geico cannot establish individual liability against him. (Id.) According to him, no

evidence shows that he participated directly, had authority to control, or had knowledge

about Glassco’s practices at issue here. (Id.) Geico responds that Bailey is individually liable

because he owns one-third of Glassco and oversees its day-to-day operations. (Doc. 133 at

28 n.29.)

Once corporate liability is established under FDUTPA, the plaintiff can establish

individual liability by showing that the individual defendant (1) participated in the

practices or acts or (2) had authority to control them. FTC v. Gem Merch. Corp., 87 F.3d

466, 470 (11th Cir. 1996); see also KC Leisure, Inc., 972 So. 2d at 1073-74 (applying

individual-liability analysis from the Federal Trade Commission Act to claim brought

under FDUTPA). In either scenario, the plaintiff must prove that the individual defendant

30

had knowledge of the deceptive practices. See Gem Merch., 87 F.3d at 470.

To show that an individual has control over a company, the plaintiff may produce

evidence showing that the defendant is actively involved in business affairs and in forming

corporate policy. See FTC v. Life Mgmt. Servs. of Orange Cnty., LLC, 350 F. Supp. 3d

1246, 1260 (M.D. Fla. 2018) (Mendoza, J.). And to establish that individual’s knowledge,

the plaintiff may show that the defendant had “actual knowledge of material

misrepresentations, reckless indifference to the truth or falsity of such misrepresentations,

or an awareness of a high probability of fraud along with an intentional avoidance of the

truth.” See id. (citation omitted).

The Court concludes that summary judgment in Bailey’s favor is inappropriate due

to factual disputes over Bailey’s control of Glassco. Bailey testified that he is Glassco’s

president and manages the day-to-day operations of the business and has done so since

2015. (Doc. 126-2 at 22-23.) He also testified that his responsibilities consist of “[p]retty

much everything” including opening the door in the morning, closing at night, accounting,

managing installation schedules, and “all of the internal day-to-day operations.” (Doc. 126-

3 at 36.) These facts are sufficient to defeat Bailey's motion for summary judgment. As a

result, Bailey's motion for summary judgment on Geico’s FDUTPA’s claim, with respect

to corporate and individual liability, is denied.

31

6. Common Law Fraud (Count VI)

Bailey argues the Court should grant summary judgment in his favor on Geico’s

common-law fraud claim against him. (Doc. 122 at 32-34.) According to Bailey, Geico’s

fraud claim relies on conclusory allegations that Glassco lacked valid benefit assignments

from insureds and misrepresented that it was entitled to reimbursement on claims for

windshield repairs. (Id. at 33.) Bailey argues that these allegations rely on the false premise

that Glassco had no right to reimbursement on its claims. (Id.) And Bailey argues that

Geico’s fraud claim against him relies solely on his ownership of Glassco. (Id. at 34.)

Geico relies on its theory that a repair shop which violates the Repair Act has no

right to payment. (Doc. 133 at 28-29.) Once again in a footnote, Geico argues that its

fraud claim against Bailey is not premised solely on his ownership but also on how Bailey

oversees Glassco’s day-to-day operations. (Id. at 29 n.30.)

To succeed on a common-law fraud claim, the plaintiff must prove (1) a false

statement; (2) that the person making the statement knew the statement was false at the

time it was made; (3) that the statement was made to induce another to rely on that

statement; (4) the other person acted in reliance on the statement; and (5) resulting damage

to the other person. Gandy v. Trans World Comput. Tech. Grp., 787 So. 2d 116, 118

(Fla. 2d DCA 2001).

As analyzed above, claims for repairs performed by noncompliant entities are not

32

fraudulent or unlawful under the Repair Act vis-a-vis the insurance company. See supra

Section III.A.2.a. So, Geico cannot base its common-law fraud claims on alleged “pervasive

violations of the Repair Act” any more than it can base its RICO claims on Repair Act

violations.

But Geico’s common-law fraud claim also includes allegations of misrepresentations

that are not based on Repair Act violations. For example, the common-law fraud section

of Geico’s complaint alleges that Glassco falsely represented benefit assignments and that

it was eligible to receive payment when it wasn’t. (Doc. 1 4 148). Geico has put on evidence

that Glassco overbilled for windshield repairs, misrepresented to insureds that Glassco

would perform the repair work and never obtained insureds’ consent to subcontract the

work to independent contractors, and forged certain insureds’ signatures on assignment

forms. (See Doc. 124-4 at 9; Doc. 125 at 24; Doc, 126-1 4 13, 31-33, Ex. L.) Thus, there

are disputes of material fact that preclude granting summary judgment on Geico’s

common-law fraud claim.

Further, Bailey’s argument that Geico’s fraud claim against him relies solely on his

ownership of Glassco is without merit. Geico points to various evidence showing that

Bailey’s involvement with Glassco goes beyond mere ownership. See (Doc. 126-2 at 22-

23); (Doc. 126-3 at 36). Thus, Bailey’s motion for summary judgment against Geico on its

fraud claim will be denied to the extent that claim is not based on Repair Act violations.

33

7. Unjust Enrichment (Count VID)

Bailey argues that Geico may not recover on its unjust-enrichment claim based on

violating the Repair Act or other inequitable conduct because the Repair Act provides no

cause of action to insurers. (Doc. 122 at 34.) According to Bailey, for an unjust-enrichment

action to lie, the statute must state that the violating transaction is void or provide for

restitution. (Id.) Bailey argues that the Repair Act does neither. (Id.) Further, Bailey argues

that Geico’s other allegations in support of its unjust-enrichment claim overlook that the

insureds received a benefit, namely a new windshield, so Geico cannot show that he was

unjustly enriched by Glassco’s actions. (Id. at 35.)

Geico argues that it established an unjust enrichment claim because Glassco was

never entitled to compensation for work unlawfully completed. (Doc. 133 at 29.) And

Geico argues that Glassco could not receive payments for its fraudulent claims because it

lacked valid benefit assignments from insureds. (Id.) So Geico concludes that allowing

Glassco to retain payment for its unlawful actions would be inequitable. (Id.)

In his reply, Bailey reiterates that no common-law remedy exists without a statutory

provision rendering a contract void and unenforceable. (Doc. 139 at 15.)

Geico bases its unjust enrichment claims on Glassco’s alleged (1) Repair Act

violations and (2) other unjust or inequitable conduct apart from the Repair Act. While

the question of whether Geico may establish an unjust enrichment claim premised on

34

Repair Act violations is complex,’ that question ultimately does not need to be answered

because Glassco did not violate the Repair Act vis-a-vis Geico here. But Geico’s claims of

unjust enrichment based on other unjust or inequitable conduct apart from the Repair Act

may proceed if they involve disputes of material fact.

Here, as with Geico’s common-law fraud claim, disputes of fact remain as to which

insureds received windshields and whether Glassco fairly charged or overcharged for them.

(Doc. 122 at 34; Doc. 124-4 at 9.)). See Alhassid v. Bank of Am. NA, 60 F. Supp. 3d

1302, 1322 (S.D. Fla. 2014) (Bloom, J.) (stating that whether a party received a direct

benefit from another is a factual question). To the extent Glassco overcharged for the

windshields, Geico’s unjust enrichment claims may succeed. As a result, Bailey’s second

argument for summary judgment—that Geico received adequate consideration because its

'S The Eleventh Circuit has recognized that, under Florida law, an unjust enrichment claim could be

grounded on the violation of a Florida statute that provided no private right of action. See Silver Star, 739

F.3d at 582 (allowing an unjust enrichment claim premised on violations of the Florida Health Care Clinic

Act); Allstate Insurance Company v. Vizcay, 826 F.3d 1326, 1328-30 (11th Cir. 2016) (Ed Carnes, CJ.)

(same). But see Buell, 267 F. App’x at 908-09 (finding no common law claim available for violations of the

Florida Unfair Insurance Trade Practices Act). When it has recognized such a claim, it looked to the text

of the statute to see if the Florida legislature used language indicating its intent to provide a judicial remedy

for the violations in question. See Silver Star, 739 F.3d at 582 (relying on descriptions of licensing violations

as “unlawful,” “noncompensable,” and “unenforceable” to infer a cause of action); Vizcay, 826 F.3d at 1330-

31 (relying on Silver Star). But in Pincus v. American Traffic Solutions, Inc., 986 F.3d 1305 (11th Cir.

2021) Jill Pryor, J.), the Eleventh Circuit recognized that this question implicates principles of federalism

and comity and certified the following questions to the Florida Supreme Court: “Does Pincus’s unjust

enrichment claim fail because the statutes at issue provide no private right of action? [and] Does Pincus’s

unjust enrichment claim fail because he received adequate consideration in exchange for the challenged fee

when he took advantage of the privilege of using his credit card to pay the penalty?” The Florida Supreme

Court agreed to hear argument on the case in October 2021.

35

insureds obtained windshield replacements—fails due to the remaining factual disputes.

Bailey’s motion to for summary judgment on Geico’s unjust-enrichment claim

(Count VII) is denied.

8. Summary of Bailey’s Motion for Summary Judgment

Bailey’s motion for summary judgment on Geico’s civil RICO (Count I), RICO

conspiracy (Count III), and Florida RICO (Count V) claims is granted. His motion for

summary judgment on Geico’s FDUPTA (Count IV), common-law fraud (Count VI), and

unjust enrichment (Count VII) claims is denied. And his SLAPP motion is denied.

B. Glassco’s Motion for Summary Judgment

Glassco moves for summary judgment under Florida’s anti-SLAPP statute. (See

Doc. 123.) Glassco also moves for summary judgment against Geico’s declaratory-

judgment claim (Count I), FDUTPA claim (Count IV), common-law fraud claim (Count

VI), and unjust-enrichment claim (Count VII). (See Doc. 123.) And Glassco moves for

summary judgment in its favor on its affirmative defenses of waiver, voluntary payment,

compulsory counterclaim, and collateral estoppel. (Id.)

1. Anti-SLAPP

Glassco argues that Florida’s anti-SLAPP statute prohibits Geico from bringing its

claims against Glassco. (Doc. 123 at 1-4.) Like Bailey, Glassco argues that Geico brought

this action in retaliation for Glassco pursuing unpaid claims from Geico in state court. (Id.

36

at 2-3.)

Glassco’s Anti-SLAPP motion fails because Geico’s case is not without merit.

§ 768.295(3), Fla. Stat. (prohibiting suits against another person or entity “without merit”

and “primarily because such person or entity has exercised” their constitutional rights). As

this order explains in Section III.B.3 below, Glassco’s motion for summary judgment

against Geico’s FDUTPA claims under a traditional-theory violation fail. Further, Geico’s

common-law fraud and unjust-enrichment claims survive summary judgment. So at least

some of Geico’s claims against Glassco have merit. Glassco’s SLAPP motion is denied.

2. Declaratory Judgment (Count I)

Glassco seeks summary judgment on Geico’s declaratory-judgment claim. (Doc.

123 at 8-22.) According to Glassco, Count I fails because it is based on Glassco’s alleged

violations under the Repair Act, which do not render submissions by a noncompliant repair

shop fraudulent or noncompensable; do not render Glassco’s contracts unenforceable; and

provide no rights to insurers. (Id. at 9-12.) Glassco also argues that the Repair Act is thus

inapplicable and, even if it does apply, Glassco violated none of its provisions. (Id. at 12-

18.) And Glassco argues that any other bases unconnected to the Repair Act Geico put

forth for its declaratory judgment fail. (Id. at 18-22.)

Geico argues that it is entitled to a declaratory judgment because evidence shows

Glassco pervasively violated the Repair Act. (Doc. 134 at 21.) According to Geico,

37

Glassco’s actions forfeited its right to payment. (Id.)

As the order on Glassco’s motion to dismiss explains, Count I seeks a declaration

that Glassco “is not . . . in compliance with the Repair Act.” (Doc. 59 at 6; Doc. 1 at 4113.)

“[A]n insurer may pursue a declaratory action which requires a determination of the

existence or nonexistence of a fact upon which the insurer’s obligations under an insurance

policy depend.” Higgins v. State Farm Fire and Cas. Co., 894 So. 2d 5, 12 (Fla. 2004); see

also Axis Surplus Ins. Co. v. Contravest Constr. Co., 921 F. Supp. 2d 1338, 1344-45

(M.D. Fla. 2012) (Antoon, J.).

For the reasons explained in Section III.A.2.a, the Court will grant Glassco’s motion

for summary judgment on this claim. Namely, technical violations for work nevertheless

completed are not fraudulent conduct, and the Repair Act contains no language stating

that the technical violations are noncompensable. As a result, Geico may not obtain a

declaration that Glassco is not in compliance with the Repair Act.

3. FDUTPA (Count IV)

Glassco argues that the Court should grant summary judgment in its favor on

Geico’s FDUTPA claim. (Doc. 123 at 22-29.) According to Glassco, Geico cannot rely

on the Repair Act to establish a per se violation under FDUTPA. (Id. at 23-25.) Glassco

also argues that Geico fails to establish a traditional violation under FDUTPA because

Glassco’s actions were not unfair or deceptive. (Id. at 25-26.) And Glassco argues Geico

38

fails to put forth evidence showing that Glassco harmed consumers or caused actual

damages. (Id. at 26-29.)

Geico argues that summary judgment in Glassco’s favor is inappropriate because

Glassco’s actions constitute unfair and deceptive practices by misleading Geico into paying

over $720,000 in claims. (Doc. 134 at 22.) Geico argues that Glassco’s actions offended

public policy set forth under the Repair Act. (Id. at 23.) And that Glassco’s actions resulted

in harm to the consumer, namely Geico. (Id.) Further, Geico argues that Glassco’s actions

in misleading Geico caused Geico over $720,000 in actual damages by paying for

fraudulent claims for windshield repairs. (Id. at 24-25.)

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or

practices, and unfair or deceptive acts or practices in the conduct of any trade or

commerce[.]” § 501.204, Fla. Stat. A plaintiff may bring a FDUTPA claim under two

theories: per se violations or traditional violations. See Feheley v. LAI Games Sales, Inc.,

No. 08-23060-CIV, 2009 WL 2474061, at *3-5 (S.D. Fla. Aug. 11, 2009) (Moreno, J.).

A per se violation occurs when the defendant violates “[a]ny law, statute, rule, regulation,

or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or

unconscionable acts or practices.” § 501.203(3)(c); see Webber v. Bactes Imaging Sols.,

Inc., 295 So. 3d 841, 844 (Fla. 2d DCA 2020). A traditional violation occurs when the

defendant’s actions constitute unfair or deceptive acts regardless of whether a rule or

39

regulation prohibits those actions. § 501.204(1); see Webber, 295 So. 3d at 844.

The Court concludes that Geico cannot prevail on its FDUTPA claim under a per

se theory. Nothing in the Repair Act states that violations under its provisions constitute

deceptive and unfair trade practices under FDUTPA. See §§ 559.901-559.9221, Fla. Stat.

This stands in contrast to other Florida statutes stating that violations under their

provisions constitute deceptive and unfair practices under FDUTPA. See, e.g., § 509.511,

Fla. Stat. (Florida Membership Campground Act); see also Feheley, 2009 WL 2474061,

at *4 (“[MJany Florida statutes expressly serve as per se FDUTPA predicates.”). Without

language stating that violations under the Repair Act constitute violations under

FDUTPA, Geico’s theory that the defendants’ actions constitute an express per se violation

under FDUTPA fails. See Feheley, 2009 WL 2474061, at *4; see also Cross v. Point &

Pay, LLC, 274 F. Supp. 3d 1289, 1297 (M.D. Fla. 2017) (Mendoza, J.) (concluding that

violations under Section 560.204, Florida Statutes, cannot form for the predicate for a

FDUTPA claim because the plaintiff failed to establish that the statute expressly proscribes

deceptive and unfair practices); Hucke v. Kubra Data Transfer Corp., 160 F. Supp. 3d

1320, 1328 (S.D. Fla. 2015) (Rosenberg, J.) (holding that the plaintiff failed to show that

the Money Transmitter Statute at issue there included any FDUTPA-related language).

Nor can Geico establish an implied per se violation under FDUTPA. An implied

per se violation involves unfair, unconscionable, or deceptive trade practices. See Webber,

40

295 So. 3d at 844; Feheley, 2009 WL 2474061, at *4. An unfair practice offends established

public policy and is immoral or “substantially injurious” to consumers. Webber, 295 So. 3d

at 844 (citation omitted). “A deceptive practice is one ‘likely to mislead’ consumers.”

Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. 2d DCA 2006) (quotation omitted).'©

Geico cannot establish an implied per se violation for multiple reasons. To begin,

the Repair Act uses no language characterizing violations—let alone technical violations—

as unfair, deceptive, or unconscionable. See §§ 559.901-559.9221, Fla. Stat.; see also

Feheley, 2009 WL 2474061, at *4 (“[Section] 849.15[, Florida Statutes,] includes no

explicit declaration that a violation constitutes an unfair, unconscionable, or deceptive trade

practice, as do other statutory provisions that operate as implied predicates.”). What is

more, the Court found no Florida caselaw holding that technical violations under the

Repair Act constitute FDUTPA violations. See Feheley, 2009 WL 2474061, at *5 (“No

Florida court has ever cited [§ 849.15] as a FDUTPA predicate.”). Even more telling is

that Geico is not a “customer” under the Repair Act. See also Auto Glass America, 418 F.

Supp. 3d at 1025 (dismissing FDUTPA claim based on Repair-Act predicate because

Allstate was not a customer under the statute). Finally, as discussed earlier, concluding that

technical violations under the Repair Act constitute unfair or deceptive practices is

incongruent with the Repair Act containing no provision voiding claims by noncompliant

% The Court located no—nor did the parties cite—caselaw elaborating on FDUTPA’s use of

“unconscionable.”

41

repair shops for work performed. As a result, Geico cannot establish an implied per se

FDUTPA violation predicated on the Repair Act, at least not when it is not a “customer”

for purposes of the Act.

Geico might succeed under a traditional-violation theory. To succeed on a

traditional theory, the plaintiff must prove (1)a deceptive act or unfair practice,

(2) causation, and (3) actual damages. Rollins, 951 So. 2d at 869; Feheley, 2009 WL

2474061, at *5. An unfair or deceptive practice is one “likely to deceive a consumer acting

reasonably in the same circumstances.” Off: of Atty. Gen., Dep’t of Legal Affs. v.

Wyndham Int, Inc., 869 So. 2d 592, 598 (Fla. 1st DCA 2004); Feheley, 2009 WL

2474061, at *5.

Generally speaking, whether conduct constitutes an unfair or deceptive trade

practice is a factual question. See Suris v. Gilmore Liquidating, Inc., 651 So. 2d 1282, 1283

(Fla. 3d DCA 1995); Siever v. BWGaskets, Inc., 669 F. Supp. 2d 1286, 1293 (M.D. Fla.

2009) (Fawsett, J.). That said, the plaintiff must prove that the defendant’s unfair or

deceptive practices harmed “consumers.” See (Doc. 59 at 18); Caribbean Cruise Line, Inc.

v. Better Bus. Bureau of Palm Beach Cnty., Inc., 169 So. 3d 164, 169 (Fla. 4th DCA 2015)

(“[W]hile the claimant would have to prove that there was injury or detriment to consumers

in order to satisfy all of the elements of a FDUTPA claim, the claimant does not have to

be a consumer to bring the claim.”).

42

Viewing the evidence in the light most favorable to Geico, a genuine dispute of

material fact exists on its claim for a traditional FDUPTA violation. First, as the Court’s

previous order discussed, Geico fits under FDUTPA’s broad definition of “consumer,”

which includes “any commercial entity, however denominated.” § 501.203(7), Fla. Stat.;

(Doc. 59 at 18-19). And fraudulent conduct in the context of billing insurance companies

qualifies as deceptive acts that harms consumers (both the insurance company and its

insureds) for FDUTPA purposes. See State Farm Mut. Auto Ins. Co. v. Med. Serv. Cntr.

of Fla., Inc., 103 F. Supp. 3d 1343, 1354-55 (S. D. Fla. 2015) (Moore, C.J.). Here, Geico

put forth evidence showing that Glassco billed for more time than it took to perform

windshield repairs. (See Doc. 124-4 at 9.) As a result, whether Glassco’s actions constitute

unfair or deceptive practices is an issue for the jury to decide. See also Siever, 669 F. Supp.

2d at 1293 (finding a genuine dispute of material fact on whether the defendants’

representations about the exclusive right to a trade name constituted unfair or deceptive

practices).

Factual disputes also exist as to whether Glassco’s actions caused actual damages to

Geico. Under FDUTPA, a plaintiff may recover actual damages equal to “the difference in

the market value of the product or service in the condition in which it was delivered and

its market value in the condition in which it should have been delivered according to the

contract of the parties.” Rollins Inc. v. Heller, 454 So. 2d 580, 585 (Fla. 3d DCA 1984)

43

(quotation omitted).

Here, Geico presents evidence that Glassco billed more than it should have for some

claims. (Doc. 124-4 at 9.) That means Geico can produce evidence at trial showing how

much Glassco billed (market value of service in condition delivered) versus how much

Glassco should have billed (market value of service in condition it should have been

delivered).'” As a result, a genuine dispute of material fact exists about whether Glassco’s

actions caused actual damages to Geico. See also Siever, 669 F. Supp. 2d at 1294 (denying

summary judgment where the plaintiffs could introduce evidence showing that failure to

protect exclusivity of trade name rendered useless the purchase price of using that trade

name).

To summarize, Geico cannot establish a violation under FDUTPA under an

express per se theory because nothing in the Repair Act states that violations under the

statute constitute violations under FDUTPA. Nor can Geico establish a violation under

FDUTPA under an implied per se theory. But a genuine issue of material fact exists on

whether Geico can succeed on a traditional-violation theory under FDUTPA. Glassco’s

motion for summary judgment on this count will be granted to the extent that Geico seeks

to pursue a per se violation under FDUTPA. The motion will be denied for Geico to

Geico’s argument about restitution in this context is misplaced. (See Doc. 134 at 24.) At trial, Geico

must introduce evidence showing the difference in value between what Glassco billed and what it should

have billed. Geico’s argument about whether Glassco could have billed in the first place is separate and

unavailing.

44

pursue a traditional violation under FDUTPA.

4, Common Law Fraud (Count VI)

Glassco argues that the economic-loss rule bars Geico from succeeding on its

common-law fraud claim because Geico only suffered economic damages, which is

insufficient. (Doc. 123 at 29-30.) Glassco also argues that Geico fails to provide evidence

showing Glassco made false statements to Geico, that Geico relied on Glassco’s

misrepresentations, or that Geico suffered damages because of Glassco’s

misrepresentations. (Id. at 30-32.)

Geico argues that courts repeatedly reject arguments like Glassco’s about the

economic-loss rule. (Doc. 134 at 25.) Further, Geico argues that evidence shows Glassco

falsely represented that it had valid benefit assignments and had a right to receive payment

for repairs completed. (Id. at 26.) And Geico argues that it relied on Glassco’s

misrepresentations because Geico had no knowledge about Glassco’s violations under the

Repair Act. (Id. at 26-27.)

Glassco’s arguments for summary judgment fail. Glassco’s first argument that the

economic loss rule bars Geico’s common-law fraud claim is wrong “[b]ecause the economic

loss rule applies when the fraud relates to the performance of the contract.” State Farm

Mut. Auto. Ins. Co. v. Physicians Injury Care Center, Inc., 427 F. App’x 714, 719-20

(11th Cir. 2011); see State Farm Mut. Auto. Ins. Co. v. Altamonte Springs Diagonostic

45

Imaging, Inc., 2011 WL 6450769, at *4 (M.D. FI. Dec. 21, 2011) (Presnell, J.) (“[B]ecause

the economic loss rule applies when the fraud relates to the performance of a contract,’ and

[the defendant] assumed no duty of performance through the assignment of benefits, the

economic loss rule does not bar [the insurance company’s] claim for common law fraud.”

(quotation omitted)). Here, Glassco assumed no duty of performance when the insureds

assigned them the benefits of their contractual relationship with Geico. So, the economic

loss rule does not bar Geico’s common-law fraud claim.

Further, as discussed in Section HI.A.6, Geico may pursue its fraud claim to the

extent that claim is not based on Repair Act violations. See Thornber, 568 So. 2d at 918.

And genuine disputes of material fact exist on Geico’s fraud claim. Geico provides evidence

that Glassco made false statements involving, among other things, (1) overbilling for

windshield repairs and (2) forging certain insureds’ signatures on assignment forms. (See

Doc. 124-4 at 9; Doc. 125 at 24; Doc, 126-1 94 13, 31-33, Ex. L.) And Geico points to

evidence showing that Glassco knowingly made those false statements, which resulted in

Geico relying on those statements and paying Glassco more than it should for windshield

repairs. (See Doc. 126-1 at 3-4.) As a result, Glassco’s motion for summary judgment on

this claim (County VI) will be denied.

5. Unjust Enrichment (Count VII)

Glassco argues that the Court should grant summary judgment against Geico’s

46

unjust-enrichment claim. (Doc. 123 at 32-34.) Geico argues to the contrary. (Doc. 134 at

27-28). For the reasons discussed in Section III.A.7, the Court will deny Glassco’s motion

for summary judgment against Geico’s unjust-enrichment claim (Count VII).

6. Waiver and Voluntary Payment

Glassco argues that the Court should grant summary judgment on its waiver and

voluntary-payment affirmative defenses. (Doc. 123 at 34-35.) After providing the standard

for each affirmative defense, Glassco states: “Geico seeks to recover payments it voluntarily

made to Shazam for windshield replacements at a time when it had the right and obligation

to investigate claims before paying them. This applies to the 53 settled claims, too.” (Id.)."°

Glassco’s conclusory argument fails. Nowhere does Glassco explain how each

element of waiver and voluntary payment is met. This alone is fatal to Glassco’s argument.

See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999) (“The

district court is free to disregard arguments that are not adequately developed.”); Resol. Tr.

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11% Cir. 1995) (“[T]he onus is upon the parties

to formulate arguments[.]”).

What is more, Geico points to evidence showing that it had no knowledge of all the

facts surrounding Glassco’s claim submissions. (See Doc. 126-1 at 4); Cox v. Porsche Fin.

Servs. Inc., 337 F.R.D. 426, 430 (S.D. Fla. 2020) (Gayles, J.) (“The party asserting the

18 Glassco’s reference to “Shazam” is puzzling and possibly the result of recycled arguments from a different

case.

47

[voluntary-payment] defense must ‘show that the person who made the payment had full

knowledge of the relevant facts, including allegedly wrongful conduct[.]” (quotation

omitted)); Zurstrassen v. Stonier, 786 So. 2d 65, 70 (Fla. Ist DCA 2001) (“A waiving party

must possess all of the material facts in order to constitute waiver.”) (citation omitted). So

Glassco’s motion for summary judgment on these affirmative defenses will be denied.

7. Compulsory Counterclaim and Collateral Estoppel

Glassco also moves for summary judgment on its compulsory-counterclaim and

collateral estoppel affirmative defenses. (Doc. 123 at 35.) But again, Glassco puts forth

conclusory arguments. For its compulsory-counterclaim defense, Glassco asserts: “All of

Geico’s claims in this case arose from the same operative facts as the facts of the underlying

state court litigation. However, Geico undisputedly did not raise these issues as compulsory

counterclaims.” (Id.) Then, with respect to its collateral-estoppel defense, Glassco states:

“On the 11 claims that were tried in state court and lost by Geico, Geico is collaterally

estopped from pursuing those claims in this action.” (Id.)

Glassco’s arguments fail. Nowhere does Glassco explain why Geico’s claims here

were compulsory in state court. See Montgomery Ward Dev. Corp. v. Juster, 932 F.2d

1378, 1381 (11th Cir. 1991) (discussing factors Florida courts consider in deciding whether

claims were compulsory). In fact, Glassco fails to even specify which cases in state court

required Geico to assert counterclaims. And Glassco falls woefully short in explaining how

48

it establishes success on its collateral-estoppel defense. See Zurstrassen, 786 So. 2d at 68—

69 (listing elements necessary to prove collateral estoppel). Glassco’s motion for summary

judgment on these affirmative defenses will be denied due to its lack of development.

8. Summary of Glassco’s Motion for Summary Judgment

Glassco’s motion for summary judgment against Geico’s declaratory-judgment

claim (Count I) is granted. Glassco’s motion for summary judgment against Geico’s

FDUTPA claim (Count IV), common-law fraud claim (Count VI), and unjust-

enrichment claim (Count VII) is denied. Glassco’s motion for summary judgment on its

affirmative defenses of waiver, voluntary payment, compulsory counterclaim, and collateral

estoppel is denied. And Glassco’s SLAPP motion is denied.

C. Geico’s Motion for Summary Judgment

Geico moves for summary judgment against each defendant on its declaratory-

judgment claim (Count I), unjust-enrichment claim (Count VI), and FDUTPA claim

(Count IV). (See Doc. 125.) And Geico moves for summary judgment against Glassco’s

counterclaims. (Id.)

1. Declaratory Judgment (Count I)

Geico argues that it is entitled to summary judgment on its declaratory-judgment

claim because Glassco never complied with the Repair Act. (Doc. 125 at 26-28.) So Geico

concludes that it is entitled to a declaratory judgment that it need not pay outstanding

49

claims from Glassco. (Id. at 27; see also Doc. 137 at 12-14.)

For the reasons discussed in Sections IIJ.A.2.a and IJI.B.2, Geico’s motion will be

denied. Technical violations under the Repair Act for work otherwise completed is not

fraudulent. As a result, Geico’s motion for summary judgment on this claim will be denied.

2. Unjust Enrichment (Count VII)

Geico argues for summary judgment on its unjust-enrichment claim. (Doc. 125 at

28-29.). According to Geico, Glassco may not receive payment under the Repair Act

because of its violations; so allowing Glassco to retain payment already made would be

inequitable. (Id. at 28-29.)

For the reasons discussed in Section IILA.7, the Court will deny Geico’s motion for

summary judgment against Glassco, Wilemon, and Bailey because disputes of fact remain

as to which insureds received windshields and whether Glassco fairly charged or

overcharged for them. (Doc. 122 at 34; Doc. 124-4 at 9.) The Court concludes that a

genuine issue of material fact exists with respect to Geico’s motion for summary judgment

against Glassco, Wilemon, and Bailey. (See Doc. 126-2 at 66-68.)

Victor puts forth a different argument. (Doc. 136 at 17-21.) He argues that Geico

has no evidence showing that he obtained a benefit. (Id.) Instead, he argues that any benefit

went to Glassco. (Id. at 17-18.) He further emphasizes that he only received compensation

from Glassco for work he performed and that he had no involvement with submitting

50

claims to Geico. (Id. at 18.) Victor also argues that Geico’s unjust-enrichment claim fails

as a matter of law because Geico paid claims pursuant to assignments of benefits (i.e.,

contracts) and unjust-enrichment claims fail when a contract exists. (Id. at 19.) Victor

argues that this is not a case of unjust enrichment because Glassco performed the

windshield repairs at issue. (Id. at 20.) Finally, Victor argues that any benefit he received is

de minimis because he “never received a dime as a result of any of Geico’s payments to

Glassco.” (Id.)

To succeed on an unjust-enrichment claim, the plaintiff must prove (1) it conferred

a benefit on the defendant, (2) the defendant knew about the benefit, (3) the defendant

accepted or retained the benefit, and (4) “the circumstances are such that it would be

inequitable for the defendant to retain the benefit without paying fair value.” Performance

Orthopaedics, 278 F. Supp. 3d at 1328.

Reviewing evidence with inferences more favorable to Victor, the Court concludes

that a genuine dispute of material fact exists on Geico’s unjust-enrichment claim. Victor

points to evidence suggesting that his knowledge about Glassco’s operations was limited at

best. See, e.g., (Doc. 126-3 at 37, 157; Doc. 126-5 at 22, 34.) As a result, Geico’s motion

for summary judgment against Victor on its unjust-enrichment claim will be denied.”

Victor's argument about Geico having no unjust-enrichment claim because contracts exist is unavailing

because he points to no evidence showing that he and Geico were ever in contractual privity. See Silver

Star, 739 F.3d at 584.

51

3. FDUTPA (Count IV)

Geico argues that it is entitled to summary judgment on its FDUTPA claim. (Doc.

125 at 29-32.) Geico’s first argument is that insurers may recover damages under

FDUTPA for any violation under the Repair Act. Ud. at 30.) Its second argument is that

it established the elements necessary to prove a FDUTPA violation. (Id.) And Geico’s

third argument is that it need not prove fraudulent intent or knowledge by the Defendants.

(Id. at 30-31.) To support its arguments, Geico points to evidence it believes shows that

the Defendants committed deceptive and unfair trade practices. (Id. at 31.)

For the same reasons discussed in Section III.B.3, Geico is not entitled to summary

judgment on its FDUTPA claim under a per se theory. So this subsection will focus on

whether it is entitled to summary judgment under a traditional theory. See Feheley, 2009

WL 2474061, at “3-5.

Reviewing the evidence with inferences more favorable to the Defendants, the

Court concludes that a genuine dispute of material fact exists on Geico’s FDUTPA claim.

For Glassco’s part, it points to evidence suggesting that nothing in Geico’s policy for paying

claims required the insureds to sign an assignment of benefits. (Doc. 124-4 at 12.) If

Glassco can show that Geico regularly paid claims knowing that those claims were not

technically compliant with the Repair Act, then Glassco might show that its alleged actions

were not fraudulent or deceptive. See Suris, 651 So. 2d at 1283. So Geico is not entitled to

52

summary judgment against Glassco.

Turning to Wilemon, genuine disputes of material fact preclude summary judgment

against him too. He points to evidence showing that Glassco is responsible for windshield

repairs, is liable for windshield installations, honors warranties on repairs and installations,

pays installers for their work, and assumes the loss for any bill unpaid. (See Doc. 126-2 at

107; Doc. 126-3 at 64, 112.) This evidence is enough to question whether Glassco’s actions

constitute unfair and deceptive practices. So Geico’s motion for summary judgment against

Wilemon on this count will be denied.

Unlike Glassco and Wilemon, Bailey cites no record evidence when arguing that

the Court should deny Geico’s motion for summary judgment. (Doc. 131 at 19-25.)

Nonetheless, a genuine dispute of material fact exists because evidence shows that Glassco

provides express warranties on its work. (Doc. 126-3 at 112.) Further, evidence shows that

Glassco provides prompt service to insureds and replaces defectively installed windshields

at no cost to the customer. (Doc. 126-2 at 47, 114-15.) This evidence, along with other

evidence in the record, is sufficient to raise a question about whether Glassco’s actions are

deceptive. See Suris, 651 So. 2d at 1283. So Geico’s motion for summary judgment against

Bailey fails.

Finally, Victor argues that Geico put forth no evidence to hold him individually

liable for Glassco’s actions. (Doc. 136 at 14-15.) But a genuine dispute of material fact

53

exists on this point too. Evidence suggests that Victor had little-to-no involvement with

Glassco’s operations. See, e.g., (Doc. 126-3 at 37, 157; Doc. 126-5 at 22, 34.) This presents

a factual question about whether Victor actively participated or knew about Glassco’s

allegedly deceptive practices. See KC Leisure Inc. v. Haber, 972 So. 2d 1069, 1073 (Fla.

5th DCA 2008). And, for the reasons stated previously, some evidence suggests that

Glassco’s actions might not constitute deceptive practices. So Geico’s motion for summary

judgment against Victor on this claim is denied.

In the end, Geico’s motion for summary judgment against the Defendants on its

claim under FDUTPA (Count IV) is denied.

4, Glassco’s Counterclaims

Geico argues that the Court should grant summary judgment in Geico’s favor

against Glassco’s counterclaims. (Doc. 125 at 33-34.) In a separate order, the Court

granted Geico’s motion to dismiss those counterclaims. (Doc. 147.) So Geico’s motion for

summary judgment on this issue is denied as moot.

5. Summary of Geico’s Motion for Summary Judgment

Geico’s motion for summary judgment against the defendants on its declaratory-

judgment claim (Count I), unjust-enrichment claim (Count VI), and FDUTPA claim

(Count IV) is denied. Geico’s motion for summary judgment against Glassco’s

counterclaims is denied as moot.

54

D. Wilemon’s Motion for Summary Judgment

Wilemon moves for summary judgment against Geico’s RICO claims (Counts I,

III, and V), FDUTPA claim (Count IV), common-law fraud claim (Count VI), and

unjust-enrichment claim (Count VII). (See Doc. 135.)

1. Civil Rico, RICO Conspiracy, and Florida RICO (Counts II, IIT, and V)

Wilemon argues that the Court should grant summary judgment in his favor on

Geico’s RICO, RICO conspiracy, and Florida RICO claims against him. (Doc. 127 at 6—

16.) Naturally, Geico disagrees. (Doc. 135 at 19-25.)

For the reasons stated in Sections III.A.2, A.3, and A.4, Wilemon’s motion will be

granted. The Repair Act cannot serve as the predicate for a RICO claim; Geico cannot

establish open-ended or closed-ended continuity nor point to any evidence that Wilemon

acted with intent to deceive or was aware of any misrepresentations that Glassco’s

representatives allegedly made; Geico’s RICO conspiracy claim fails without the

underlying RICO claims; and Geico cannot succeed on a Florida RICO claim. Wilemon’s

motion for summary judgment on these RICO claims (Counts I, II, and V) will be

granted.

2. FDUTPA (Count IV)

Wilemon argues that he is entitled to summary judgment on Geico’s FDUTPA

claim because Geico cannot establish either corporate or individual liability. (Doc. 127 at

55

16-17.) For the reasons discussed in Section III(.B.3, Wilemon’s corporate-liability

argument fails because a genuine issue of material fact exists on whether Geico can succeed

on a traditional-violation FDUTPA theory against Glassco.

Wilemon’s argument about no individual liability fails too. The record shows that

Wilemon owned 33% ownership interest in Glassco. (Doc. 126-4 at 19.) When Glassco

started, Wilemon’s responsibilities as President varied: “[He] was just trying to get

everything going as far as like making sure things were set up with the paperwork and

insurance companies and the auto glass itself. [And] [m]aking sure we had distributors and

installers to install the glass.” (Id. at 20.) Wilemon “set up” the technicians, representatives,

and everything needed for training. (Id. at 26-27.) Later, Wilemon’s involvement—but

not ownership—decreased but he still filled work orders, set routes for technicians, and

ordered parts. (Id. at 27.)

This evidence, along with other evidence in the record, is enough to create a genuine

dispute of material fact about Wilemon’s knowledge about Glassco’s policies and his direct

involvement in Glassco’s business affairs. See Life Mgmt. Servs., 350 F. Supp. 3d at 1260.

So Wilemon’s motion for summary judgment against Geico’s FDUTPA claim (Count IV)

will be denied.

3. Common Law Fraud (Count VI)

Wilemon argues that he is entitled to summary judgment on Geico’s common-law

56

fraud claim. (Doc. 127 at 17-18.) According to Wilemon, Geico provides no evidence

showing he made false statements to Geico. (Id. at 17.) Wilemon concludes that Geico has

no basis for holding him individually liable. (Id. at 18.)

Wilemon’s argument fails. See supra Section III.A.6. The false statements at issue

here are contained in the claims Glassco submitted to Geico for payment. Those alleged

false statements involve, among other things, (1) Glassco overbilling for windshield repairs

and (2) forging certain insureds’ signatures on assignment forms. (See Doc. 124-4 at 9;

Doc. 125 at 24; Doc, 126-1 4§ 13, 31-33, Ex. L.) See State Farm Mut. Auto. Ins. Co. v.

Physicians Grp. of Sarasotas LLC, 9 F. Supp. 3d 1303, 1311 (M.D. Fla. 2014)

(Kovachevich, J.) (concluding that details of allegedly fraudulent claims satisfied pleading

requirements for common-law fraud). Further, Geico points to more than Wilemon’s mere

ownership to support its claim for individual liability against him. See, e.g., (Doc. 126-4 at

19-20, 26-27.) So Wilemon’s motion for summary judgment against Geico’s common-

law fraud claim (Count VI) is denied.

4, Unjust Enrichment (Count VII)

Wilemon argues that Geico’s unjust-enrichment claim fails because Geico cannot

base that claim on violations under the Repair Act. (Doc. 127 at 18-19.) He also argues

that Geico’s claim fails because the insureds received adequate consideration and that

nothing from Geico’s payments to Glassco unjustly enriched him. (Id. at 19.)

57

For the reasons discussed in Section HI.A.7, Wilemon’s arguments about violations

under the Repair Act and adequate consideration will be rejected.

Finally, Wilemon’s argument that he was not unjustly enriched fails. Evidence

shows that Wilemon owned one-third of Glassco. (See Doc. 135 at 19.) So a genuine

dispute of material fact exists about whether he was enriched by Glassco’s allegedly

fraudulent claim submissions. His motion for summary judgment against Geico’s unjust-

enrichment claim (Count VII) will be denied.

5. Summary of Wilemon’s Motion for Summary Judgment

Wilemon’s motion for summary judgment against Geico’s civil RICO claim (Count

II), RICO conspiracy claim (Count HI), and Florida RICO claim (Count V) will be

granted. His motion for summary judgment against Geico’s FDUTPA claim (Count IV),

common-law fraud claim (Count VI), and unjust-enrichment claim (Count VID) will be

denied.

E. Victor’s Motion for Summary Judgment

Victor moves for summary judgment against all Geico’s claims but particularly its

RICO claims (Counts II, HI, and V), FDUTPA claim (Count IV), common-law fraud

claim (Count VI), and unjust-enrichment-claim. (See Doc. 128.)

1. The Repair Act as Basis for Geico’s Claims

Victor argues that the Court should grant summary judgment against Geico on all

58

claims because each is impermissibly based on the Repair Act. (Doc. 128 at 15-16.) To

support his contention that the Repair Act cannot form the basis of his other claims, Victor

relies on the Court’s previous order’s discussion about how the Repair Act contains no

language stating that noncompliant claims are noncompensable. (Id. at 15; see also Doc.

59 at 16.) To Victor, that missing language under the Repair Act means that Geico’s claims

based on the Repair Act fail as a matter of law. (Doc. 128 at 16.)

Victor overextends himself with this argument. This order describes those claims

impermissibly based on the Repair Act and those claims not so based. Just as the Court’s

order previously discussed, some of Geico’s claims are based on allegedly fraudulent

conduct regardless of noncompliance with the Repair Act. (Doc. 59 at 14.) Victor’s

argument that all Geico’s claims are based on the Repair Act fails. His motion for summary

judgment on this basis will be denied.

2. Civil RICO, RICO Conspiracy, and Florida RICO (Counts I, IJ, and V)

Victor moves for summary judgment against Geico’s RICO claims. (Doc. 128 at

17-21.) For the same reasons stated in Section III.A.2, A.3, and A.4, Victor’s motion

against Geico’s RICO claims (Counts I], III, and V) will be granted.

3. FDUTPA (Count IV)

Victor argues for summary judgment on Geico’s FDUTPA claim. (Doc. 128 at 21-

23.) He argues that no evidence shows that he had significant control over Glassco so he

59

cannot be held individually liable. (Id. at 22.) He also argues that no evidence shows him

personally involved with marketing Glassco’s services to insureds customers. (Id.) Further,

he argues that no evidence shows that Glassco’s actions harmed consumers. (Id. at 22-23.)

A genuine dispute of material fact exists on these issues. Evidence shows that Victor

owned one-third of Glassco. (Doc. 126-1 at 2; Doc. 126-2 at 66.) Glassco’s actions at issue

here occurred while Victor owned the company. (Doc. 126-1 at 3.) When Glassco started,

Victor’s role was to help with safety inspectors and technicians. (Doc. 126-4 at 51-52.) He

also helped with his “knowledge and expertise on sales, trainings and the set up,” including

which software to use and what kind of glass and distributors to set up. (Doc. 126-5 at 27—

28.) He also provided training on how to identify windshield damage and about the

installation process. (Id. at 39.)

Although Victor points to various evidence suggesting that he has no control over

Glassco and never directly participated in its operation (see Doc. 128 at 3-13), the Court

must review the evidence with inferences in Geico’s favor as the nonmoving party. The

evidence discussed in this section is enough to create a genuine dispute of material fact

about Victor’s involvement with Glassco. After all, the conduct at the heart of this case is

Glassco’s process for repairing windshields and submitting those claims. The evidence

shows that Victor helped with training on windshield repairs and about the installation

process. The degree, if any, to which Victor might have controlled or directed Glassco’s

60

actions is for the fact finder to decide. See Life Mgmnt. Servs., 350 F. Supp. 3d at 1260.

So Victor’s motion for summary judgment on Geico’s FDUTPA claim (Count IV) will be

denied.

4, Common Law Fraud (Count VI)

Victor argues that the Court should grant summary judgment against Geico’s

common-law fraud claim against him. (Doc. 128 at 25-26.) According to Victor, Geico

failed to provide evidence showing that Victor knew that false statements were made to

Geico. (Id. at 25-26.)

This argument fails. Evidence shows that Victor helped set up Glassco and trained

technicians on the installation process. (Doc. 126-4 at 51-52; Doc. 126-5 at 27-28.)

Installations are at the heart of Geico’s dispute with the defendants: whether Glassco

fraudulently billed Geico for windshield repairs. And the allegedly false statements would

be those claims submitted to Geico. See Physicians Grp. of Sarasota, 9 F. Supp. 3d at 1311.

As a result, Victor's motion for summary judgment against Geico’s common-law fraud

claim (Count VI) will be denied.

5. Unjust Enrichment (Count VII)

Victor argues that he is entitled to summary judgment on Geico’s unjust-

enrichment claim because no evidence shows that he obtained benefits from Glassco’s

actions. (Doc. 128 at 26-27.) Further, Victor argues that any benefit he might have

61

obtained was unknown to him; so he could not have “voluntarily accepted and retained the

benefit conferred.” (Id. at 27-28.) And Victor argues that no unjust-enrichment claim

exists because Geico paid Glassco under a contract. (Id. at 29.)

Victor’s arguments fail. Evidence shows that Victor is one-third owner of Glassco.

And evidence shows that he helped start Glassco’s installation process and that he trained

technicians. So a genuine dispute of fact exists over whether he benefitted from Geico’s

payments to Glassco based on fraudulent claims. And no evidence shows that Victor was

in contractual privity with Geico to render an existence of a contract as a barrier to relief.

See Silver Star, 739 F.3d at 584. As a result, Victor’s motion for summary judgment against

Geico’s unjust-enrichment claim (Count VII) will be denied.

6. Summary of Victor's Motion for Summary Judgment

Victor’s motion for summary judgment against Geico’s RICO claims (Counts II,

II, and V) is granted. His motion for summary judgment against Geico’s FDUTPA claim

(Count IV), common-law fraud claim (Count VI), and unjust-enrichment claim (Count

VII) is denied.

IV. CONCLUSION

Geico’s claims against the Defendants premised on violations under the Repair Act

fail because submissions for work from noncompliant entities nevertheless completed is not

fraudulent conduct. But genuine disputes of material fact preclude granting summary

62

judgment on Geico’s claims alleging fraudulent and deceptive practices independent of the

Repair Act. As a result, the following is ORDERED:

1. Bailey's motion for summary judgment (Doc. 122) is GRANTED IN

PART and DENIED IN PART:

a. Bailey’s motion for summary judgment based on Florida’s anti-

SLAPP statute is DENIED.

b. Bailey’s motion for summary judgment against Geico’s RICO claims

(Counts IT, II, and V) is GRANTED.

c. Bailey's motion for summary against Geico’s FDUTPA claim (Count

IV), common-law fraud claim (Count VI, and unjust-enrichment

claim (Count VII) is DENIED.

2. Glassco’s motion for summary judgment (Doc. 123) is GRANTED IN

PART and DENIED IN PART:

a. Glassco’s motion for summary judgment under Florida’s anti-SLAPP

statute is DENIED.

b. Glassco’s motion for summary judgment against Geico’s declaratory-

judgment claim (Count I) is GRANTED.

C. Glassco’s motion for summary judgment against Geico’s FDUTPA

claim (Count IV), common-law fraud claim (Count VI), and unjust-

63

enrichment claim (Count VII) is DENIED.

d. Glassco’s motion for summary judgment on its affirmative defenses of

waiver, voluntary payment, compulsory counterclaim, and collateral

estoppel is DENIED.

3. Geico’s motion for summary judgment on its claims against the defendants

(Doc. 125) is DENIED. Geico’s motion for summary judgment against

Glassco’s counterclaims is DENIED as moot.

4, Wilemon’s motion for summary judgment (Doc. 127) is GRANTED IN

PART and DENIED IN PART:

a. Wilemon’s motion for summary judgment against Geico’s RICO

claims (Counts I, II, and V) is GRANTED.

b. Wilemon’s motion for summary judgment against Geico’s FDUTPA

claim (Count IV), common-law fraud claim (Count VI), and unjust-

enrichment claim (Count VII) is DENIED.

5. Victor’s motion for summary judgment (Doc. 128) is GRANTED IN

PART and DENIED IN PART:

a. Victor’s motion for summary judgment against Geico’s RICO claims

(Counts IT, III, and VI) is GRANTED.

b. Victor’s motion for summary judgment against Geico’s FDUTPA

64

claim (Count IV), common-law fraud claim (Count VI), and unjust-

enrichment claim (Count VII) is DENIED.

6. The parties must file a joint notice by October 1, 2021, proposing agreed

upon trial-related motions deadlines and a new trial term and advise whether

a second round of mediation would prove useful.

ORDERED in Tampa, Florida, on September 24, 2021.

pa “5 Mizelle

United States District Judge

65